Appeal by petitioner from an order entered 19 January 2007 by
Judge John R. Jolly, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 1 November 2007.
Law Offices of Michael C. Byrne, by Michael C. Byrne, for
Attorney General Roy Cooper, by Assistant Attorney General
Angel E. Gray, for respondent-appellee.
Peggy Anderson (petitioner) appeals from an order entered 19
January 2007 affirming the decision of the State Personnel
Commission (SPC) holding petitioner was not subject to a denial of
promotional priority. For the reasons stated herein, we remand
this case to the superior court for further review.
Facts and Procedural History
Petitioner has been continuously employed by the North
Carolina Department of Health and Human Services (respondent) at
Whitaker School since March of 1995. On 14 December 2004,
petitioner applied for a promotion to an open position of MentalHealth Unit Director I at Whitaker School. Based on the interview
and screening process employed by respondent, petitioner was denied
the promotion and the position was offered to, and accepted by, an
On 15 March 2005, petitioner filed a Petition for Contested
Case Hearing (petition) in the Office of Administrative Hearings
alleging respondent failed to give her promotional priority
consideration in violation of N.C. Gen. Stat. § 126-7.1 (2005).
The case was heard before Administrative Law Judge (ALJ) Beecher R.
Gray on 26 and 27 September 2005. On 25 October 2005, the ALJ
issued his decision finding in favor of petitioner and awarding her
back pay, front pay, promotion into the next available Mental
Health Unit Director I position at Whitaker School, and attorney's
fees. The SPC considered the ALJ's decision and heard the case at
its 16 February 2006 meeting. On 27 February 2006, the SPC issued
its Decision and Order adopting the ALJ's decision that petitioner
was entitled to promotional priority consideration, but also
finding that because another state employee was more qualified than
petitioner, petitioner was not entitled to promotion, front pay, or
back pay. On 11 May 2006, the SPC issued an Amended Decision and
Order, adding exhibit numbers and an employee's name which were
left blank in the decision issued by the Commission on 27 February
2006. On 28 March 2006, petitioner filed a Petition for
Judicial Review in Wake County Superior Court. The case was heard
before the Honorable John R. Jolly, Jr., during the 19 May 2006
session of Wake County Superior Court. On 5 January 2007, thesuperior court issued an Order affirming the decision of the SPC.
At the outset, we note that respondent raises the issue of
whether petitioner's appeal should be dismissed for rules
violations. Respondent argues: (1) petitioner's brief has
numerous style and format issues[;] (2) the Statement of the
Facts in petitioner's brief is not a non-argumentative summary of
all material facts underlying the matter in controversy . . . in
violation of N.C.R. App. P. 28(b)(5); and (3) petitioner has failed
to include a statement of the applicable standard of review for
each question presented in violation of N.C.R. App. P. 28(b)(6).
It is well settled that the Rules of Appellate Procedure are
mandatory and not directory. Thus, compliance with the Rules is
required. However, every violation of the Rules does not require
dismissal of the appeal or the issue[.] State v. Hart
, 361 N.C.
309, 311, 644 S.E.2d 201, 202 (2007) (internal citations and
quotations omitted). While petitioner's brief contains minor
violations of our Rules of Appellate Procedure, these violations do
not prevent this Court or the defendant from a full understanding
of the issues at hand, nor [do they] obstruct the process of this
appeal. State v. Burke
, ___ N.C. App. ___, ___, 648 S.E.2d 256,
258 (2007). Further, in an attempt to correct her most egregious
rules violation, petitioner has filed with this Court a motion to
amend her brief to include the applicable standard of review. Weallow petitioner's motion to amend her brief and decline to dismiss
When this Court reviews appeals from superior court either
affirming or reversing the decision of an administrative agency,
our scope of review is . . . limited to determining: (1) whether
the superior court applied the appropriate standard of review and,
if so, (2) whether the superior court properly applied this
standard. Mayo v. N.C. State Univ.
, 168 N.C. App. 503, 507, 608
S.E.2d 116, 120 (2005). The dispositive issue before this Court is
whether the superior court erred in reviewing the petition for
judicial review of the decision of the SPC under the wrong standard
Pursuant to N.C. Gen. Stat. § 150B-51,
In reviewing a final decision in a contested
case in which an administrative law judge made
a decision . . . and the agency does not adopt
the administrative law judge's decision, the
court shall review the official record, de
novo, and shall make findings of fact and
conclusions of law. In reviewing the case, the
court shall not give deference to any prior
decision made in the case and shall not be
bound by the findings of fact or the
conclusions of law contained in the agency's
final decision. . . .
N.C. Gen. Stat. § 150B-51(c) (2005); see also Cape Med. Transp.,
Inc. v. N.C. Dep't of Health & Human Servs.
, 162 N.C. App. 14, 20,
590 S.E.2d 8, 13 (2004) (holding N.C.G.S. § 150B(c) provides only
one standard of review, de novo
, and does not require the trial
court to state the standard of review.). De novo
a court to consider the question anew, as if the agency has notaddressed it. Cape Med. Transp.
, 162 N.C. App. at 21, 590 S.E.2d
at 13 (citation and quotations omitted).
Here, the SPC adopted the findings of fact and conclusions
of law of the Administrative Law Judge. However, the SPC found an
additional finding of fact to present a complete picture of the
factual evidence in the record and modified two of the ALJ's
conclusions of law to correct erroneous conclusions of law[.]
The SPC's final order stated:
the Decision of the Administrative Law Judge
in favor of the Petitioner finding that
Petitioner was entitled to priority
consideration because her qualifications were
substantially equal to those of the successful
non-State employee applicant selected for the
position be adopted, but the Commission also
finds that because there was another State
employee more qualified than Petitioner,
Petitioner is not entitled to promotion, front
pay, or back pay and Petitioner did not
present sufficient evidence to show that but
for the denial of promotional priority, she
would have received the promotion.
Thus, while the SPC may have adopted the components of the ALJ's
decision, the SPC's decision was contrary to the ultimate decision
of the ALJ and the superior court should have considered the
petition under the de novo
standard of review.
It is clear, however, that the superior court reviewed the
facts of this case using the whole record test. The superior
court states in its order:
(9) Pursuant to N.C. Gen. Stat. § 15OB-51(b),
this Court reviewed each of the Findings of
Fact and Conclusions of Law and the Final
Agency Decision . . . applying the whole
record test to determine whether each was
supported by substantial evidence in the
record and whether any were arbitrary and
. . .
(11) Upon a review of the whole record, the
Findings of Fact, Conclusions of Law and the
Final Agency Decision (and Amended Final
Agency Decision) of the State Personnel
Commission were supported by substantial
evidence in the entire record as submitted.
The superior court then upheld and incorporated by reference the
sixty-three findings of fact of the ALJ and the additional finding
of fact of the SPC because they are supported by substantial
evidence in the record and are not arbitrary and capricious[.]
This is the whole record test. Watkins v. N.C. State Bd. of
, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)
(holding under the whole record test, the superior court must
examine all the record evidence . . . to determine whether there
is substantial evidence to justify the agency's decision.).
Because the superior court erroneously applied the whole
record test to, and did not conduct a de novo
review of, the facts
of this case, we remand this case to the superior court to review
the record de novo
and to make findings of fact and conclusions of
law in accordance with N.C.G.S. § 150B-51(c). Royal v. Dep't of
Crime Control & Pub. Safety
, 175 N.C. App. 242, 622 S.E.2d 723
(2005); N.C. Dep't of Env't & Natural Res. v. Carroll
, 358 N.C.
649, 664, 599 S.E.2d 888, 897 (2004) (When an 'order or judgment
appealed from was entered under a misapprehension of the applicable
law,' an appellate court may remand for application of the correct
legal standards.) (quoting Howerton v. Arai Helmet, Ltd.
, 358 N.C.
440, 469, 597 S.E.2d 674, 693 (2004)).
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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